Hauck v. American Car & Foundry Co.

• Citation: 14 S.W.2d 497
• Decision Date: 05 March 1929
• Docket Number: No. 20388.,20388.
• Parties: HAUCK v. AMERICAN CAR & FOUNDRY CO.
• Court: Court of Appeal of Missouri (US)

14 S.W.2d 497

HAUCK v. AMERICAN CAR & FOUNDRY CO.

No. 20388.

St. Louis Court of Appeals. Missouri.

March 5, 1929.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Walter E. Hauck against the American Car & Foundry Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

Watts & Gentry and Arnot L. Sheppard, all of St. Louis, for appellant.

Fred Berthold, of St. Louis, for respondent.

NIPPER, J.

This is an action for damages for personal injuries alleged to have been sustained by respondent while in the course of his employment as one of appellant's laborers at its shops in the city of St. Louis, Mo. The petition pleads general negligence, respondent relying upon the doctrine of res ipsa loquitur. The answer is a general denial. There was a verdict and judgment for plaintiff, and defendant appealed.

Respondent testified that he was working for appellant, and had been for about a year and a half prior to his injury, and that his duties were to put brake beams on the end of box cars, which were being manufactured at appellant's plant. When these cars had reached a point in the process of manufacture where the brake beams were to be put on, they rested upon a railroad track inside the plant, and were moved along at different points for different work to be done upon them. As the work progresses on a car, it is moved toward the opposite end of the plant so that, when the work is completed and the car is finished, it has reached the end of the plant. In order to move these cars during the process of manufacture, an air hoist is used, consisting of a drum turned by air, and upon which a cable is attached that goes from the drum to the car, pulling the car along the track. This air hoist is controlled by means of a lever made of steel or cast iron. This lever is about two feet long, an inch or inch and a half wide, and a half inch thick. Upon each end of this lever a chain is attached. When one of the chains is pulled the hoist runs in one direction, and when the other chain is pulled it reverses the direction of the air hoist. The handle of this hoist, to which the chains were attached, was about fourteen feet above respondent's head.

At the time respondent was injured, he had completed the particular work he was to do on this car and started to move it a distance of about 80 feet. He commenced this movement in the usual way, by pulling one of the chains on the handle of the air hoist, which started the drum in motion. When respondent had pulled down on one of these chains, he held it for the purpose of keeping the air valve open so that the car would continue to move. When it had moved about 40 feet, without any warning, the handle and the chains fell and struck him on the head. The first he knew of anything being wrong with the handles was when they struck him on the head and knocked him to his knees. When he regained complete consciousness, he saw the air hoist lever lying at his feet on the ground. He also saw a six-sided nut lying close to the air handle, which nut was used to hold the handle on the air hoisting machinery. This nut had come off, permitting the handle to fall. He looked closely at both the handle and the nut, and saw nothing defective about either of them. The evidence discloses that it was no part of respondent's duty to inspect the air hoist or any of its parts. This duty rested upon a man whom respondent designated as George, and whose last name he could not remember, nor did he know who this man George was.

It is unnecessary to refer to respondent's injuries, or the nature, character, and extent of the same, because no point is made here requiring any discussion of this phase of the evidence.

There are only two questions raised here:

First, that the court erred in refusing to give to the jury the instruction which appellant requested, in the nature of a demurrer to the evidence: and, second, that the court erred in refusing to give to the jury instruction F, requested by appellant.

The appellant offered no evidence in the case, and relies for reversal upon the proposition that under the facts of this case the rule of res ipsa loquitur cannot be invoked.

The rule of res ipsa loquitur is not usually applied in master and servant cases. However, it is now well settled in this state that such rule does apply in a master and servant case where the facts warrant its application.

Appellant cites and relies, to some extent at least, upon the case of Pronnecke v. Westliche...